Government could legislate after casual worker court victory

Marco Green
May 23, 2020

The long awaited decision in WorkPac Pty Ltd v Rossato [2020] FCAFC 84 was handed down by the Full Federal Court (FFC) yesterday.

The court found employees who had regular rostered shifts are not casual employees, even if that is how they were described in their employment contracts.

In Rossato, WorkPac argued that employees are casuals unless they have a "firm advance commitment as to the duration of the employee's employment or the days/hours the employee will work".

Former casual coal miner, Paul Skene, who took on WorkPac in 2016 and won back paid annual leave on the basis that he was not a genuine casual, welcomed the news.

The full federal court held on Wednesday that the employee subject of the proceedings was permanent part-time because he and WorkPac had agreed on indefinite employment that was stable, regular and predictable.

PPA president Dr Geoff March hailed the outcome as a win for workers including employed pharmacists.

The court found that casual workers who have regular and predictable shifts with a firm advance commitment to work can not be considered "casual" even if that's what it states on their contract. The Court also determined that WorkPac was not entitled to "restitution" of the loading as it was not paid by mistake.

"This practice short changes our hardworking pharmacy employees of job security and important entitlements".

"It will no doubt cause many businesses to think twice about the way they structure their employees" working patterns.

"That employee is now seeking back pay of all their annual leave and personal leave entitlements and the employer is likely to have to pay significant compensation", he said.

Advocates say a landmark court ruling on casual workers' entitlements could be a game changer for worldwide students.

"At a time when pharmacy workers are bearing the brunt of overwork and unsafe working conditions due to the COVID-19 pandemic, pharmacy employers owe it to their staff to ensure they receive the appropriate pay, employment conditions and entitlements".

'If there's any "double dipping" going on here it is being performed by the employers - they're taking advantage of the insecurity of casual work while still getting permanent hours out of their workers'.

"I'm delighted with this decision", he said.

Innes Willcox, chief executive of the national employer association Ai Group, called on Parliament to "act quickly to restore fairness" following the decision.

WorkPac lost a similar case in 2018, prompting employer warnings that workers employed as casuals, and paid a loading of up to 25% on their base rate of pay, would be able to "double dip" by also gaining the entitlements of permanent employees such as annual and sick leave.

"A lot of employers wanting to recruit worldwide students cannot because they can't work three full days a week, so if we can lobby to increase the work restriction from 20 hours to 24 hours then that alone could create tens of thousands of part time jobs for students", he said.

"Employers should accept [the decision] and do the right thing by workers".

"The current laws, as interpreted in these decisions, operate as a major deterrent to the employment of casuals".

But Labor's industrial relations spokesperson Tony Burke said the only "double-dipping" being done was by employers.

According to The Guardian, the Government could potentially intervene in this case, and WorkPac could appeal.

'Given the potential for this decision to further weaken the economy at a time when so many Australians have lost their jobs, it may also be necessary to consider legislative options, ' he said in a statement.

Other reports by Click Lancashire

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